The new expropriation regime in the West Bank

The new expropriation regime in the West Bank
Week 2362 of Occupation
Daniel Breslau
Israel’s takeover of West Bank lands for settlement construction has proceeded without interruption since 1967. But the legal strategies for carrying out land acquisition and legitimating it in the eyes of the Israeli public and the international community have evolved over the 45 years. There are now signs that the regime of expropriation is once again changing its shape, this time making even fewer concessions to international law and opinion.
Since the beginning of Israel’s occupation of the West Bank, Israeli courts have allowed the army to expropriate private Palestinian-owned land. International law allows for the occupier’s use of land in cases of “military necessity,” and Israel’s High Court of Justice gave “military necessity” an extremely liberal interpretation, in effect allowing seizure of land whenever the military authorities claimed that it would benefit the security of the state.
Thus many of the early settlements were established on private land seized by the army and legitimated by the court. That was until 1979, when the High Court of Justice, in the face of a flagrant mockery of the spirit of international law, ruled that the military could not confiscate land for the sole purpose, with no security rationale, of establishing a permanent settlement. The extreme religious settlement of Elon Moreh was forced to relocate, and the era of military pretexts for the theft of private land for settlements was brought to a close.
But of course the Elon Moreh decision did not slow the acquisition of Palestinian land for the illegal settlement enterprise. It led to two new techniques. The first involved the spurious legal distinction between private Palestinian lands, and “state lands” to which no one held legal title. The court declared that private land could not be used for settlements (although military requisition was still approved), but state lands were fair game. Thus the courts created a legal avenue for the theft of lands, some of which had been cultivated for many generations, and all of which constitute the only territory left for the future Palestinian state.
The other consequence of the landmark Elon Moreh decision was the practice of seizing hilltops and claiming unauthorized but unofficially-sanctioned outposts. The networks of religious settler activists, and well placed bureaucrats in the ministries of defense and housing continued to spread across the central spine of the West Bank, oblivious to whom the land’s legal owners might be. The Elon Moreh ruling was bypassed as settlers grabbed hilltops, while government agencies quickly connected them to the electric grid, water services, and road network.
Now this thirty-year-old regime of land acquisition, with its dual offensives of legal procedure for so-called “state lands,” and after-the-fact normalization of illegal “outposts,” might be undergoing another transformation. Recent years have placed some obstacles in the path of the settler movements, from the work of Peace Now, to Dalia Sasson’s government-sponsored expose of the deeply rooted corruption that enables the illegal settlements. And most recently, in July of this year, a government-appointed commission headed by retired jurist Edmond Levy called for an end to the two-faced policy of unofficially promoting outposts while officially placing them outside the law. The Levy commission called for the immediate legalization of the outposts, even preserving those built on private Palestinian land, perhaps compensating the owners.
Despite the Prime Minister’s judgment that the Levy report was too provocative in the eyes of the US and international community to be formally adopted, it may nonetheless indicate the wave of the future for Israel’s land-acquisition policy in the West Bank. Despite tabling the report, the government appears to accept the commission’s conclusion that the current land-grab regime is untenable. After complying with court orders to evacuate the Migron outpost and the Ulpana neighborhood of Beit El, and promising to evacuate several other outposts built on private Palestinian land, Israel is making decisive moves to legalize13 outposts that are not subject to such orders. In April, Israel legalized three settlements – Bruchin, Sansana, and Rechalim – that had been built years earlier without proper government authorization.
In recent weeks the government is making an additional move that would implement recommendations of the Levy Commission, by asking that the court reverse a key component of the Elon Moreh decision. The state has asked the High Court of Justice to allow settlement construction on private lands that were taken for ostensibly military purposes. And the construction is to begin will begin with the areas of Beit El where it would like to resettle the displaced families of Ulpana. But in all, 44 settlements are built on private land expropriated by the army before 1979, and the ruling the state is requesting would open up all of these lands, still owned by Palestinians who have had no access to them for over 30 years.
While the major development of settlements, in terms of population, during the last twenty years has been in what are now large communities around Jerusalem and along the green line, the new expropriation regime is aimed at normalizing and expanding the Israeli colonial presence throughout the West Bank.